IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5th DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.1044/2019 BETWEEN:
Mr. Ibrahim Maresh Hasan Ali Al Naqb S/o Maresh Aged about 30 years Room No.6, Darool Ulama Arebic College Siddiqui Nagar, Bannimantapa, Mysuru-570 015.
(By Sri Ramesh P. Kulkarni, Advocate) AND:
State by Lakshar Police Mysuru City-570 001 Represented by State Public Prosecutor High Court of Karnataka, Bengaluru.
(By Sri M. Divakar Maddur, HCGP) …Petitioner …Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the order dated 15.07.2019 passed by the learned Principal District and Sessions Judge at Mysuru dismissing the application of the petitioner under Section 227 of Cr.PC 1973 in Special Case No.362/2018 and allow the said application by discharging the petitioner from the said prosecution by allowing the application of the petitioner under Section 227.
This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R This petition has been filed by petitioner-accused No.2 being aggrieved by the order dated 15.7.2019 passed by Principal District and Sessions Judge, Mysuru, dismissing the application filed by the petitioner-accused No.2 under Section 227 of Cr.P.C. in Special Case No.362/2018.
2. I have heard the learned counsel appearing for the petitioner-accused No.2 and the learned High Court Government Pleader for respondent-State.
3. Though this case is listed for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
4. The factual matrix of the case of the prosecution in brief is that, on 28.7.2018 accused No.1 was found in possession of psychotropic substance i.e. Khat weighing about 7 kgs. 592 grams. On 29.7.2018, 9 kgs. 470 grams of Khat was seized from the room of accused No.1 where he was staying and in all seized 17 kgs. 62 grams of Khat from the possession of accused No.1. During the course of investigation the voluntary statement of accused No.1 was recorded and accused No.1 in his voluntary statement stated that he has got the said substance from accused No.2. Accused No.2 was apprehended and in his voluntary statement also he acknowledged the voluntary statement said by accused No.1. Thereafter, after investigation charge sheet has been filed. Accused were secured and there after accused No.2 filed an application under Section 227 of Cr.P.C. by contending that there is no material as against the petitioner-accused to frame the charge. It is only on the basis of the voluntary statement made by accused No.1, accused No.2 has been arrayed as an accused. He further contended that no material is forthcoming to raise a strong suspicion of commission of the offence by accused No.2.
5. The said application has been seriously objected by the learned Public Prosecutor by contending that the said material has been seized from the possession of accused No.1 and accused No.1 in his voluntary statement has deposed that as per the instruction of accused No.2 he was carrying the said contraband and even the statement of accused No.2 is also endorsing the voluntary statement of accused No.1. He further objected that accused No.1 was found in possession of 17 kgs. 62 grams of Khat and the same has been seized from the room where accused No.1 was residing. On these grounds he prayed to dismiss the petition. The trial Court after hearing both the counsel has dismissed the application.
6. It is the contention of the learned counsel for the petitioner that the order of the trial Court has erroneous, without application of mind and without perusing the records has wrongly come to the conclusion that there is material as against accused No.2 and has dismissed the application. It is his further submission that except the voluntary statement of accused Nos.1 and 2 no other material is there to connect the accused No.2 to the alleged crime. He further submitted that the learned trial Judge without looking into the question of law and appreciating the voluntary statement of the accused has come to a wrong conclusion and has wrongly dismissed the application filed under Section 227 of Cr.P.C. On these grounds he prayed to allow the petition and to set aside the impugned order and to discharge accused No.2.
7. Per contra, the learned High Court Government Pleader vehemently argued and submitted that accused No.1 has been apprehended and he was caught red handed and larger quantity of 17 kgs 62 grams of Khat has been seized from the possession of accused No.1. He further submitted that accused No.1 has given his voluntary statement and as accused No.2 was absconding, subsequently he has been apprehended and in his voluntary statement also he has stated that he has handed over the said contraband to accused No.1. All these materials clearly go to show that accused No.2 is also involved in the alleged crime along with accused No.1. The said fact has been appreciated by the Court below and has come to a right conclusion and has rightly dismissed the application. On these grounds, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions and the material placed on record.
9. On going through the charge sheet material it is the case of the prosecution that on 28.7.2018 accused No.1 was found in possession of 7 kgs. 592 grams of Khat and subsequently on 29.7.2018 accused No.1 was found in possession of 9 kgs 470 grams of Khat and the same was seized by drawing a mahazar. It is the case of the prosecution that accused No.1 in his voluntary statement stated that the Khat was given to him by accused No.2 for sale and transportation and on the basis of that accused No.2 has been apprehended and his voluntary statement has been recorded. He also substantiated the fact narrated in the voluntary statement of accused No.1. Though the voluntary statement is recorded as against accused No.2, the said voluntary statement of accused Nos.1 and 2 is hit by Section 25 of the Indian Evidence Act. The said voluntary statement cannot be used except for the purpose of recovery as contemplated under Section 27 of the Indian Evidence Act, for no other purpose the voluntary statement can be used that of the accused. Even if the voluntary statement is said to have been given in law, the said voluntary statement will not substantiate the case of the prosecution to bring home the guilt of the accused at any stretch of imagination. It is well proposed proposition of law that even if the said evidence is not rebutted and if it is accepted, then also no offence is going to be constituted. In that light, the accused is entitled to be discharged from the charges. Even if all the case of the prosecution if it is accepted it is not going to substantiate and prove the case as against accused No.2, because the voluntary statement of the accused cannot be looked into. It is also well settled proposition of law that the voluntary statement of the co- accused is not admissible and solely on the basis of the statement of the co-accused the accused cannot be convicted. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Surinder Kumar Khanna Vs. Intelligence Officer, Directorate of Revenue Intelligence, reported in AIR 2018 SC 3574. At paragraph 14 it has been observed as under:
14. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court, such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilised in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co- accused. The appellant is therefore entitled to be acquitted of the charges levelled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence.
10. On going through the material and submissions of the learned counsel appearing for the parties it is accepted that apart from the statement of accused No1. and in the voluntary statement of accused No.2, as against petitioner-accused No.2, no other material is there. As held in the decision of the Hon’ble Apex Court that the statement of the co-accused is not admissible and even as per Section 27 of the Evidence Act the statement of the accused cannot be looked into except for the purpose of recovery of any material at the instance of the accused. Prosecution has not made out any such case.
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11. Looking from any angle, there is no material to connect the accused to the alleged crime. In that light, the trial Court has committed an error and has wrongly dismissed the application filed under Section 227 of Cr.P.C.
12. In the light of the discussion held by me above, the petition is allowed and the order passed by Principal District and Sessions Judge, Mysuru, in Special Case No.362/2018 dated 15.7.2019 on an application filed under Section 227 of Cr.P.C. has been set aside and accused No.2 is discharged from the charges leveled against him.
Sd/- JUDGE *AP/-